Over at Volokh, brilliant minds debate the propriety and scope of judicial review.  It started out as a discussion of McCain-Feingold, but quickly turned to the broader issue of constitutional interpretation.  For lesser minds (like mine), this is what is commonly denigrated as “judicial activism.”

On one side of truth and justice is Orin Kerr, arguing that the courts should give a strong presumption of constitutionality to any law passed by Congress because it reflects the majoritarian will.  Or as he puts it:

I think the legitimacy of government is premised on the consent of the governed. Notions of legitimacy are complex, of course, and I don’t want to oversimplify matters too much. But legislatively enacted laws generally deserve respect because they reflect a process involving wide participation of those who will be governed by them through their elected officials. In contrast, judges impose constitutional limitations on their own, either acting individually as trial judges or on panels of a handful of judges. I think the closer connection to the consent of the governed of legislative acts relative to judicial ones provides an important reason judges should be reluctant to latch on to fallible and contested theories that would lead them to invalidate lots of legislation.

Orin tends to use more words than I do, with no apparent fear that he’s going to use up his entire allotment too soon.

And on the other side of truth and justice is Ilya Somins, arguing that this purported reflection of the “will of the governed” is hogwash.  Ilya says:

First, a high proportion of legislatively enacted laws do not in fact represent “the consent of the governed” in any meaningful sense because the vast majority of voters are ignorant about them – often not even knowing of their existence.

Second, to the extent that “the consent of the governed” implies the actual support of the majority of the actual public, it turns out that judicial review has at least as much or more consent-based legitimacy as legislative power does.

Finally, I think Orin oversimplifies when he says that “judges impose constitutional limitations on their own, either acting individually as trial judges or on panels of a handful of judges.” In reality, judges’ decisions are constrained by a political appointment process, by limits on their ability to implement decisions at odds with the views of other political actors, and by a highly institutionalized system of precedent and legal culture that make it difficult for any one judge or small group of judges to make radical changes “on their own.”

I’ve cut some of the explanatory stuff out of the respective arguments for the sake of brevity.  Lawprofs can go on a bit, you know.

So here’s my question, having enjoyed immensely this debate because I am such an intellectual snob and political theorist.  Whatever happened to Madison’s Federalist 10 and 51 in all this?  Hasn’t anybody ever heard of the “tyranny of the majority?”  Are we really a majoritarian society, pretending that pluralism and elitism hasn’t taken control and we just pretend that ordinary people have a say in what Congress does?

Even if we assume that Orin’s position, that Congress better reflects the will of the governed (which I believe to be a huge stretch), judges are constrained to explain their decisions in a constitutional context and yet other judges pass on the validity of their explanations.  If they stray too far, there’s always someone to smack them down and put them in their place.

But what about the Supremes, you ask?  Aren’t they above reproach?  Of course, but that’s part of the scheme.  Madison’s argument that the Constitution, by providing checks and balances, would be available to overcome the evils of faction requires that the judiciary, immune from the transitory whims that influence legislators, step in from time to time to keep the pandering lawmakers in their place. 

It also strikes me as ironic that the expansion of federal crimes, based upon the unrestrained rhetorical breadth of the commerce clause, that is so beloved by conservatives (not to mention legislators of all ilks since it provides a platform to prove how “tough on crime” they can be when they have run out of new legitimate crimes to create) is purely a product of the dreaded judicial activism.  When the political winds blow warm, it’s called justice.  So let’s not get too crazy about the theory when all political theorists have their day in the sun.

It seems to me that Ilya’s argument wins the day.  But then, I’m no scholar, just a lawyer.  What do I know.